The certification process for FLSA collective actions has typically been a two-step process. The first step is to secure conditional certification, which is often handed out as easily as a Santa Claus giving kids candy at Christmastime. Then, there is final certification, where the defendant employer asserts the class is inappropriate and should never have been certified.  In a recent Fifth Circuit case, Swales v. KLLM Transport Services, L.L.C., the appellate court determined that the first step of the process should be tougher on plaintiffs.  Now, in a more recent decision, a federal district court (in another Circuit) has followed Swales and declined to conditionally certify a class.  The case is entitled Mathews v. USA Today Sports Media Group, LLC, and issued from a federal court for the Eastern District of Virginia.

The plaintiff alleged she and a class were misclassified as independent contractors and thereby denied overtime pay.  She moved for conditional certification; the employer opposed, asserting the FLSA did not allow for a so-called conditional certification.  The employer also contended that some discovery was necessary to ascertain if the plaintiff could show that the proffered collective class satisfied the statutory “similarly situated” standard.

The defendant here relied heavily on the decision and rationale in the Swales case.  That decision mandated a finding of being similarly situated prior to any conditional certification.  The Fifth Circuit found that discovery was needed for a court to make that determination and any certification granted without that determination would be premature.   The plaintiff argued that the “usual” two-step process should be followed.  Under that process, the grant of conditional certification often only requires a minimal amount of proof which is often easy to secure, with a few Affidavits (that often are identical in verbiage).  That then triggers the ability of the plaintiff to send out opt-in notices and raises the stakes (and settlement value) for the defendant.  Only after this process, and a great deal of ensuing discovery, can the defendant move to de-certify the original class.  This almost always puts the employer at a disadvantage and creates great pressure to (needlessly?) settle.

The Mathews court did not approve of this two-step certification procedure.  The court relied heavily upon Swales. In that regard, the court examined the statute that governs these matters, i.e., the FLSA, and found no explicit statement or suggestion that allows the sending of opt-in notices to individuals that were not “similarly situated” to the named plaintiff.  Thus, in a victory for the defendant, the court directed discovery be conducted to ascertain the possible class members who might be “similarly situated.”    

The Takeaway

I really applaud the decision in Mathews.  I have found that conditional certification is given out far too readily, forcing the defendant to then spend a great deal of money in discovery and making a motion, after a long time and thousands of dollars, to de-certify on the basis of a lack of similarity between putative class members. Compelling the plaintiff to make that “similarly situated” showing (if they can) at a much earlier juncture in the case can only help join the issues and perhaps engender an earlier resolution (e.g., settlement). I note that the Sixth Circuit Court of Appeals will be issuing a decision on a similar motion so, given the difference in the Circuits on this issue now and the Sixth Circuit decision whatever that is, this may well mean the issue heads to the Supreme Court.

Can’t wait…